Bellows v. Bingham.

HIRAM BELLOWS v. ROYAL T. BINGHAM, apt.

Contract.

M. C. contracted to work for the defendant for an entire term, and before its expiration gave the plaintiff an order for a part of his wages. The defendant accepted the order so far as he was owing M. C. or should be owing him at a subsequent specified time. Soon after this acceptance, and before the expiration of the term, M. C. abandoned the defendant's service and absconded, thereby damnifying the defendant to a greater amount than would be due him, pro rata, for the time he had labored. Held, that the defendant's acceptance was absolute and unconditional as to the amount then due, and obligated him to pay the plaintiff the wages of M. C., pro rata, to the time of the acceptance, without deduction on account of the damage subsequently sustained.

ASSUMPSIT on an order drawn by Moses Cart on the defendant, in favor of the plaintiff, and accepted by the defendant, said order and acceptance being as follows:

"Mr. R. T. Bingham: Sir,- Please to pay Hiram Bellows "seventy-five dollars in cash and one hundred and twenty-five dol"lars in good saleable young cattle, by the first day of October "next. Fletcher, February 25th, 1852."

"I accept this order, so far as I am owing said Moses Cart, or "shall be owing him the first of Oct. next. February 25, 1852." "R. T. BINGHAM.”

(signed)

The execution and acceptance of the order were admitted, and on the trial of the case the following facts appeared.

On the 6th of October, 1851, Cart entered into a written agreement with the defendant to work for him for two years from that date, for the sum of five hundred dollars; one hundred and fifty dollars in cash and three hundred and fifty dollars in cattle, grain and produce; payable part in the month of January, 1853, and part in the month of January, 1854. The order was given to apply, when paid, on notes which the plaintiff held against the said Cart.

The plaintiff, at the time the order was accepted, knew of the existence of a contract between the defendant and Cart, by which Cart was to labor for the defendant for some period of time then unexpired; and that the indebtedness of the defendant to Cart, whatever it might be, was for wages under said contract, but he

Bellows v. Bingham.

did not know of the particular stipulations of said contract, further than is above stated.

Cart commenced work under the contract at its date, and continued to work under it until about the 31st of March, 1852, when he absconded from the state and abandoned his contract, without the knowledge or consent of the defendant;-and the defendant sustained a loss, much more than the amount due from him to Cart, in consequence of Cart's abandoning said contract.

Upon the foregoing facts, the county court, June Term, 1855,PECK, J., presiding,-decided that the defendant, by his acceptance, had bound himself to pay to the plaintiff whatever balance he owed Cart at the time of the acceptance; and, from evidence in the case, the court found that the defendant was owing Cart eighteen dollars and sixty-eight cents, computing the time which the said Cart had worked, by the month, at the rate of five hundred dollars for two years, without deducting anything for damages for abandoning the contract, and rendered judgment for the plaintiff for that sum, to which the defendant excepted.

H. G. Edson for the defendant.

H. R. Beardsley for the plaintiff.

The opinion of the court was delivered by

BENNETT, J. The defendant's acceptance of the draft of Cart upon him, is special, and we must look to the terms of it to learn the extent of the defendant's liability upon it. The language of the acceptance is, "I accept this order so far as I am owing Moses Cart, or shall be owing him the first of October next." It seems Cart was to work for the defendant under a special contract of the 6th of October, 1851, for the term of two years from the date of the contract, for the sum of five hundred dollars, part payable in January, 1853, and a part payable in January, 1854. On the 31st of March, 1852, Cart quit his work, without the fault of the defendant, and run away; and the case finds that the defendant's damage occasioned by the breach of the contract on the part of Cart, was more than what he was owing Cart for the time he worked for him under the contract. Though it should be conceded

Heirs of Sawyer v. Sawyer.

that Cart could not maintain an action against the defendant, yet that is not the test of the defendant's liability. The acceptance was had while Cart was in the employ of the defendant under his contract, and looks to two periods of time, 'the present and the future. We think the acceptance binds the defendant to pay to the extent he owed Cart for labor at the time he accepted his draft, though by the terms of the contract between the defendant and Cart it did not become due and payable until a future time. The language is, "I accept this order so far as I am owing Cart," clearly referring to the time of acceptance. If the defendant, in his acceptance, did not take the precaution to protect himself against the contingency that thereafter happened, the plaintiff should not be the loser by it. We are to presume the plaintiff acted upon the faith of this acceptance, and, as to him, the defendant must be bound by it. The defendant cannot be bound to pay anything on his acceptance for what transpired subsequent to it. Nothing was owing from the defendant to Cart on the first of October subsequent to the acceptance. The defendant might well set off the damages he had sustained against any claims which Cart could make upon him, if he had any, and there is nothing in the latter clause of the acceptance which can preclude the defendant from making use of the same matter as a defense against this plaintiff.

Judgment affirmed.

THE HEIRS OF GEORGE F. SAWYER, aplts. v. MARY H.

SAWYER.

Widows maintenance during settlement of her deceased husband's Widows

estate.

The statutory provision for the maintenance of the widow of a deceased person during the settlement of his estate, has a general application; and the probate court have a discretion only as to the amount of the allowance, and cannot refuse it altogether where the widow has other abundant means of maintenance.

Heirs of Sawyer v. Sawyer.

A widow is entitled to an allowance for such maintenance, though there be no children.

The statute does not require such allowance to be made in advance of the expenditure.

The amount of the allowance is a matter resting in the discretion of the probate court, or of the county court upon an appeal; and is not ordinarily subject to revision, upon exceptions, in the supreme court.

APPEAL from a decree of the probate court allowing the appellee $500 for her maintenance during the settlement of the estate of her late husband, George F. Sawyer.

It appeared that the deceased died intestate in June, 1852, leaving the appellee, his widow, and leaving no children; and that he was, at the time of his decease, a purser in the United States navy, in which capacity he had served for fifteen or twenty years previous to his death.

Letters of administration were granted to the appellee in August, 1852; and the settlement of the estate was duly proceeded with, and the decree appealed from was made at about the time of the settlement, by the appellee, of her account as administratrix.

The intestate died leaving an estate of about eighteen or twenty thousand dollars, consisting of a lot and 'dwelling-house in Burlington, worth about two thousand dollars, and the residue in money and stocks, principally money, and leaving no debts due from him except for a trifling amount.

It did not appear that the widow had any property except what she was entitled to by law out of her husband's estate, except that, since the death of her husband, she had been in the receipt of a pension, from the government of the United States, of $240 per year, allowed her as widow of an United States naval officer, commencing at his death and to continue for five years.

It appeared that since the death of the intestate, the appellee had resided in the family of her father in St. Albans, but without any agreement as to the terms on which she was so to reside, and without anything being said as to her paying for her board until about the time of her petition for an allowance for support, when she told her father she expected to, and would pay him for her board for the time she had lived, and should live with him.

It was conceded that the appellee's father was a man of wealth,

Heirs of Sawyer v. Sawyer.

and that he as well as his daughter, (the appellee,) had been accustomed to live in the style of, and associate with the first circles in society.

The appellants, being thebrother and sister, and heirs of the intestate, insisted that the widow was not, by law, entitled to any allowance for support; and that, if she was entitled to anything, the allowance by the probate court was too large.

The county court, June Term, 1855,-PECK, J., presiding,— affirmed the decree of the probate court with costs. Exceptions by the appellants.

A. O. Aldis and H. R. Beardsley for the appellants.

G. F. Houghton and B. H. Smalley for the appellee.

The opinion of the court was delivered, at the circuit session in September, by

REDFIELD, CH. J. This is an appeal from the court of probate in the matter of allowing maintenance to the widow of the intestate during the settlement of the estate; and comes into this court upon exceptions to the decision of the county court, affirming the decree of the court of probate.

The statute, upon the subject of this allowance, is very specific and unlimited. It is "the widow and children, constituting the "family of the deceased, shall have such reasonable allowance out of “the personal estate, as the probate court shall judge necessary for "their maintenance during the progress of the settlement of the "estate, according to their circumstances."

Here, it is obvious, no discretion is given the probate court to disallow such maintenance, in any case, unless upon the interpretation of the word reasonable, or as the court shall judge necessary. And it would certainly be a very unusual interpretation to put upon such terms, in their connection here, to say they were intended to regulate the discretion of the court in what cases to allow such maintenance, when, from their relation to other members of the sentence, it is obvious that the only question intended to be referred to the court, under the terms, was the amount of the allowance, according to the circumstances of the family. We can only